New Chagim

A couple of years ago, in Zionism and Yom Ha'atzmaut, I wrote about the philosophical side of what we have to celebrate regarding the events of recent times. I intentionally left out the halachic aspects of the ways in which we can or should celebrate, as this often clouds the main issue.

Now, enough time has passed and I feel free to write about the unrelated issues of the nature of new festivals, who has the right to institute them and which parts of our tefilos (if any) can be changed in their honour. At least on a theoretical level, these questions are important even for those who may feel that they have nothing to celebrate.

Megilas Ta'anis

In the times of the second Beis HaMikdash (and slightly beforehand), the Chachamim forbade fasting (and in some instances also eulogising) on various days when there was something to celebrate. A list of these days was compiled and named Megilas Ta'anis, as the main institution was the prohibition of fasting.

On most of these days, there was no obligation to do anything positive to celebrate. The Tana'im and Amora'im disputed whether or not the laws of Megilas Ta'anis apply even after the Beis HaMikdash was destroyed, and the final halacha is that it is obsolete with the two exceptions of Chanuka and Purim. As we know, these two festivals do have positive mitzvos, and they were retained because of the fame of the miracles that happened.[1]

The gemara also tells us that according to the accepted view that Megilas Ta'anis no longer applies, certainly we do not add new celebrations. Thus the institution of a festival on the day that the writing of Hashem's name on business documents ceased must have been while the Beis HaMikdash still stood. Similarly, those who declared a festival on the day of the rescinding a decree against Torah learning, bris milah and Shabbos, must have subscribed to the view that Megilas Ta'anis is still in force.[2]

It would appear from here that as long until the Beis Hamikdash is rebuilt, we should not institute new festivals. Even if there is a theoretically legitimate reason to celebrate, it does not justify further distraction from the mourning we are supposed to feel for what we are missing.

However, the Tana R' Yossi says that Megilas Ta'anis became obsolete for a different reason. After the destruction of the Beis HaMikdash, these former celebrations of events connected to it have themselves become a source of mourning.[3] This would seem to imply that celebration of happenings unrelated to the Beis HaMikdash is indeed appropriate. How can we reconcile this contradiction?

The Aroch La'ner[4] explains that as most of the festivals in Megilas Ta'anis were in celebration of events connected to the Beis HaMikdash, it became obsolete when the Beis HaMikdash was destroyed. Although a few of these festivals were not connected, as they were part of Megilas Ta'anis they were also discontinued. The corollary of this is that nowadays there is no problem in adding new festivals – although obviously it would not make any sense to add them to Megilas Ta'anis.[5]

Voluntary Chagim

The Pri Chadash[6] discusses those in his time who instituted festivals celebrating various miracles that happened to them and does invoke the rule that "if the original festivals were ceased, how can we add new ones?!" He therefore concludes that these festivals and celebratory meals cannot be obligatory, even if one observed them for many years.[7] However, it should be noted that even according to the Pri Chadash, we are perfectly entitled to celebrate days like this on a voluntary basis.

Furthermore, it is hard to understand the rationale behind the view of the Pri Chadash. If the leaders of the generation feel that it is appropriate to institute a festival, what limits their authority to do so?[8] I believe that he learned from the gemara that the revoking of Megilas Ta'anis contained an implicit decree that no new chagim could be made until the rebuilding of the Beis HaMikdash.[9] As with other rabbinic decrees, this can only be rescinded by a court of higher wisdom and numbers.[10]

This understanding of the gemara is certainly not obvious. The language used, that Megilas Ta'anis ceased (בטלה), doesn't sound like a beis din issued an active decree to revoke it. It also seems improbable that the Tana'im and Amora'im disputed whether such a historical event occurred. Neither is there any indication that an explicit decree was made to prevent the institution of new festivals.

Therefore I believe that even if we reject the explanation of the Aroch La'ner and find some other resolution to the contradiction in the gemara, the principle of not adding new festivals could only have been a policy and not a strict rule. If the leaders of the generation feel that this policy needs to be changed because of the needs of the times, they have every right to do so.

That being said, obligating people to celebrate a new festival is much less straightforward. As I have pointed out many times before, the only ones who have the power to make binding institutions on the entire Jewish people are the Sanhedrin or its equivalent (all or virtually all the Rabbis of the generation).[11] In the absence of such an authority, although we are all obligated to thank Hashem for the good he has given us, the manner in which we do so remains a matter of personal choice.[12]

Hallel

Based on the above, any festivals instituted by lesser authorities than the Sanhedrin or its equivalent must not contain any form of observance that requires a formal institution. For example, celebratory meals are clearly appropriate as they do not require any formal institution. By contrast, adding a new 'mitzvah' with its own beracha would not be possible.[13]

The 'grey area' is when we have an existing mitzvah which we want to extend; one example of this being the reciting of Hallel. While adding days on which we say Hallel poses no halachic questions if done for a good reason,[14] we cannot just say extra brachos without establishing the halachic basis for this. Saying a beracha where none is required is a severe transgression.[15]

In Brachos on Mitzvos, I already explained at length that this situation exists regarding Hallel on Rosh Chodesh, a custom started by the people as an extension of the Rabbinic institution of saying Hallel on Yom Tov. The rishonim dispute whether or not the beracha is also extended to Rosh Chodesh.

For those who say it, should the status of Hallel on Yom Ha'atzmaut and Yom Yerushalayim be different to that of Hallel on Rosh Chodesh? One possible reason to distinguish is due to the fact that in contrast to Rosh Chodesh, the custom of saying Hallel on Yom Ha'atzmaut and Yom Yerushalayim has not spread to the entire Orthodox Jewish world. One could argue that only such a widespread custom could justify a beracha being recited, as only such customs may become compulsory.[16]

However, taking a closer look at the history of Hallel on Rosh Chodesh reveals that in the times of the gemara, this custom was not universal. The gemara relates that Rav, who lived in Eretz Yisrael, was not aware of the custom until he visited Bavel.[17] Rabeinu Tam, one of the main proponents of saying a beracha on Hallel on Rosh Chodesh, assumes that even then a beracha was recited.[18]

To summarise, those who don't say a beracha on Hallel on Rosh Chodesh should certainly also not do so on Yom Ha'atzmaut and Yom Yerushalayim. Those who do say a beracha on Hallel on Rosh Chodesh certainly have some justification for doing the same on Yom Ha'atzmaut and Yom Yerushalayim.

My personal practice is to say a beracha on Hallel on Rosh Chodesh, although as I hinted in the above post, I am not 100% convinced that this is correct. Due to this uncertainty, added to the possible distinction between Rosh Chodesh and the newer festivals, I do not say a beracha on Hallel on these days. However, here too I am far from convinced of the correctness of this position and I am open to reconsidering in the future.

Yom Yerushalayim Same'ach!

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[1] Rosh HaShana 18b-19b.

[2] Ibid. This festival was a later addition to Megilas Ta'anis, after the destruction of the Beis HaMikdash.

[3] Ibid. 19b.

[4] R' Yaakov Etlinger, Germany 1798-1871.

[5] I have found only one other commentator who deals with this contradiction in the gemara – the Chasam Sofer writes that in fact the conclusion of the gemara rejects the earlier premise that we don't institute any new festivals after the destruction of the Beis HaMikdash. He argues that on the contrary, there is a Biblical obligation to celebrate and praise Hashem on a day that we were saved from danger (Shu"t Chasam Sofer 1:191). I find this explanation more difficult, but either way the halachic conclusion is the same.

[6] R' Chizkiyah di Silo, 1656 (Livorno) – 1695 (Yerushalayim).

[7] The Chasam Sofer quoted above rejects this ruling at length.

[8] Obviously, if those who attempt to impose a festival are not the legitimate authorities, there decision carries no weight. Such people have no right to institute anything. The Pri Chadash clearly means that even those who do have the authority to make other institutions cannot declare a new chag.

[9] Although see B'ikvei HaTzon siman 32, where R' Hershel Shachter explains that adding any festivals not related to the building of the Beis HaMikdash is a violation of the prohibition of Ba'al Tosif (adding new mitzvos. Despite this, he justifies the celebration of Yom Ha'atzmaut as it appears to be the start of the process leading to the rebuilding of the Beis HaMikdash). Without getting into a lengthy discussion of the parameters of this prohibition, I find this argument hard to defend. Adding a new festival should be no worse than the addition of the fourth beracha in Birkat HaMazon.

[10] Mishna, Eduyos 1:5.

[11] See How does halacha work? and Ubitul Sanhedreya.

[12] Nevertheless, based on the principle of ברוב עם הדרת מלך, finding a way that as many people can identify with as possible is far superior to each person doing his own thing.

[13] We can only make a beracha on a compulsory mitzvah, due to the appearance of the word וצונו (= He commanded us).

[14] Chazal compare saying Hallel to blasphemy (Shabbos 118b), as the mitzvah is belittled and made into a mere song (Rashi). Some have claimed that any reciting of Hallel when halacha does not require it falls under this category of blasphemy (see Nefesh HaRav, page 97), although this position is hard to justify when there is a specific reason for saying Hallel on that day (see Yabia Omer 6, Orach Chaim siman 41).

[15] See Rambam, Hilchos Brachos 1:15.

[16] As explained in Brachos on Mitzvos, some take the position that even these minhagim are never really compulsory unless endorsed by the Sanhedrin, although these rishonim also maintain that a beracha is not said on Hallel on Rosh Chodesh.

[17] Ta'anis 28b.

[18] Sefer HaYashar, Chidushim siman 537. Also quoted by Tosfos in Sukkah 44b and by many other Rishonim.

Wet Wipes on Shabbos

I'm not sure why, but probably the halachic question that I have been asked the most often over the years is what my position is on baby wipes on Shabbos. I believe that the answer is relatively straightforward, and most of what I have to say has already been written by others. However, as it involves clarification of some basic concepts which I have not seen elsewhere in English, I thought it would be worthwhile to devote a post to the topic.

Dash, Melaben and Sechita

This first section will be well known to those who have studied the relevant topics, so those who don't need a reminder please feel free to skip to the next sub-heading or the one after it.

Probably most people know that sechita ('squeezing out') can be forbidden on Shabbos, although many will not be able to identify which of the 39 categories of melachos it fits into. In fact, there are two potential candidates, either of which may be relevant in different circumstances.

The first is the melacha of dash (threshing). As the purpose of this melacha is extracting food from its unwanted parts, one derivative (with the same severity as the primary melacha) is the squeezing of olives and grapes to extract the oil/juice.[1] The melacha is only relevant when there is a desired product which is categorically different from the source – with real threshing the food product is extracted from within the waste; when squeezing fruit a liquid is obtained from within a solid. Squeezing fruit juice into a solid (e.g. lemon juice into a salad) is permitted.[2]

The other relevant melacha is melaben (lit. whitening). One of the first stages of making clothes is cleaning the wool (or other fabric); in the mishkan this was necessary for the various coverings and curtains. Wringing out clothes or fabric from the water used to wash them was an essential part of this process, thus this kind of sechita is Biblically forbidden on Shabbos as a derivative of melaben.[3]

Chazal were very stringent regarding this type of sechita, Rabbinically prohibiting various ways of getting clothes wet out of concern that people would forget that it was Shabbos and inadvertently squeeze out the liquid.[4] It seems that this concern stems from the fact that leaving clothes with this liquid in them would be damaging, or possibly because historically the effort of having to repeat a wash was something that was avoided whenever possible.

Barrel Sealing

Before we get on to analysing the case of the baby wipes, we must deal with a potentially related case from the gemara. We are told that tightening the sealing of a wine barrel is forbidden on Shabbos, as it is a psik reisha (lit. cutting off of a head), meaning that a melacha will be an inevitable result of this action.[5] Rashi explains that the melacha involved is sechita, but doesn't elaborate further. The Rishonim give various different explanations:

1) Wine is inevitably squeezed out of the seal back into the barrel. Thus a useful liquid is obtained, a violation of the melacha of dash (Aruch).

2) Even if no useful liquid is obtained, squeezing out the wine from the seal is a violation of melaben. Although with liquids other than water no Rabbinic injunctions were made out of this concern, as people are not so eager to squeeze them, if one does squeeze these liquids out of clothes the melacha is still performed (Ri).[6]

3) Neither dash nor melaben are relevant here (negating Rashi), rather tightening the seal is forbidden for an entirely different reason. We are concerned that one may decide to leave the sealing in permanently, thus creating a new vessel (the melacha of boneh or makeh b'patish. Rabbeinu Tam).[7]

4) Although neither melacha is relevant here, squeezing out liquids that are normally squeezed is Rabbinically prohibited (Ramban).[8]

It is difficult to adjudicate between these possibilities in this case. The important observation for our discussion is that according to all views, dash is only violated when a useful liquid is obtained.[9] If the liquid produced is not useful or goes to waste, provided that melaben is not relevant, squeezing it is out is prohibited Rabbinically only if this is the liquid's 'normal way,' and only according to the Ramban.

Squeezing into Solids

Moving closer to the case in question, let's first ask if it would be permitted to do something extreme and intentionally squeeze out the liquid from a wipe on to a baby's dirty behind in order to clean the baby with this liquid. With these wipes there is no question of melaben, as they are thrown out immediately after use and no-one ever has any interest in cleaning them.[10] Would this be a transgression of the melacha of dash?[11]

As we have seen, dash is only relevant when a useful liquid is obtained. In our case, the liquid is useful in order to clean the baby. However, we have also seen that when the liquid is immediately absorbed into a solid, as nothing significantly new has been created the melacha of dash has not been violated. Squeezing the water into solid excrement should be no different to squeezing a lemon into a salad.

In practice, this consideration alone may not be sufficient to allow the use of baby wipes on Shabbos. Sometimes the substance being cleaned is not particularly solid; even if it is, if it is small enough it will simply dissolve into the liquid rather than absorbing it. Even in these cases, as the liquid is used up immediately it is not clear that a melacha is involved,[12] but there certainly would be grounds for ruling stringently here.[13]

Is there any squeezing?

Now we can examine what happens when wipes are used normally. It is quite clear that there is some liquid on the surface of the wipes that does not need to be squeezed out in order to use; likewise it is clear that some amount of liquid is absorbed within the fibres of the material and could theoretically be extracted. Is the case similar to the barrel sealing, where liquid is inevitably squeezed out?

To my naked eye this would certainly not appear to be the case. I would doubt anyone who claimed to be able to discern absorbed liquid being forced out. It should therefore be obvious that using wipes in the normal way should not be a problem on Shabbos, just like dragging a chair over earth which is permitted as long as one does not intend to make a groove.[14]

Some of those who forbid the use of wipes on Shabbos claim to have verified with experts that liquid is in fact squeezed out from between the fibres of the material.[15] However, for at least two reasons this is insufficient to support their halachic conclusion:[16]

1) Laboratory observations are not relevant when it comes to defining melacha; rather we follow the observations of the naked eye.[17]

2) Even the words of the expert that they quote only attest to the fact that some liquid is absorbed within the fibres and that if one squeezes hard enough this will come out (which we knew already). There is absolutely no claim that this is inevitable.[18]

Furthermore, I contend that even if it were true that some water is inevitably extracted from the fibres, this would not constitute forbidden sechita. The truth is that some of the liquid will eventually drip out of the material even without any pressure being applied. Although any pressure will speed up this process, I do not accept that the small amount of pressure normal during wiping constitutes sechita.

It is true that it is forbidden to clean with a wet sponge without a handle on Shabbos,[19] and some of the Rishonim explain that this is because squeezing is inevitable.[20] However, this is because with a sponge the concern is the melacha of melaben.[21] When the potential problem is only dash, I believe that minimal pressure cannot constitute the extraction necessary for the melacha and this is no different to holding a dripping wipe over the baby.

Finally, if any readers share the common misconception that the lenient ruling of R' Asher Weiss on this matter is a lone view, let me point out that R' Moshe Feinstein and R' Shlomo Zalman Auerbach both ruled the same way.[22]

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[1] See Rambam, Hilchos Shabbos 8:7, 10. According to most poskim, this prohibition applies even to liquid absorbed in something other than its original source.

[2] Shabbos 144b. This is true even though there will inevitably be some liquid which is not absorbed into the solid food.

[3] Rambam, ibid. 9:11. The prohibition applies even to water that was not used for washing the clothes, as long as it is not done in a way that makes them more dirty (דרך לכלוך). For some of the details of this, see Shulchan Aruch, Orach Chaim 302.

[4] See Orach Chaim 320:15-17.

[5] Shabbos 111

[6] These first two opinions appear in Tosfos, Kesuvos 6b.

[7] Ibid., see Sefer HaYashar, Chidushim siman 283.

[8] Shabbos 111a. Also Ran, Rif Shabbos 41a.

[9] It would also appear that this violation is only Biblical if the object being squeezed from grows from the ground, see Shabbos 75a and Ritva Shabbos 111a.

[10] As far as I am aware, this point is undisputed.

[11] If not, there would be no Rabbinic prohibition even according to the Ramban, as squeezing is not the normal way to obtain water.

[12] See Shemiras Shabbos Kehilchasa (new version) 14:37, footnote 99. See also Shu"t Minchas Asher, volume 1, 14:3.

[13] Although as the squeezing is not being done from something that grows from the ground and the whole question is of a Rabbinic violation, I would probably tend to leniency.

[14] Shulchan Aruch, Orach Chaim 337:1 (based on Shabbos 22a).

[15] Orchos Shabbos volume 1, Birurei Halacha siman 7.

[16] These points are made by R' Asher Weiss (Minchas Asher volume 2, siman 33), but in fact should be easy for anyone to realise.

[17] In our case specifically, R' Asher proves this point from the commentaries to Orach Chaim 302:9, who allow cleaning gently using a damp cloth as squeezing out is not inevitable (despite the fact that laboratory observations will certainly show that some liquid is in fact extracted).

[18] Astonishingly, the full text of the expert opinion that the authors of Orchos Shabbos showed R' Asher says the opposite, that "it is reasonable to assume that normal use will only cause the exit of the water that rests above the fibres."

[19] Mishna Shabbos 143a.

[20] Rashi ibid., Rambam Shabbos 22:15 (although from the context it is clear that the Rambam's view is that this is only a Rabbinic transgression).

[21] This is explicit in the words of the Rambam there.

[22] Shemiras Shabbos ibid., Igros Moshe Orach Chaim 2:70

Workers' rights

On Pesach we all celebrate our freedom from slavery and our right to self-determination. Thank G-d we live in a world where the entire concept of slavery is virtually a thing of the past, the culmination of a long process that started with the Exodus from Egypt.[1] However, as we shall see, some of the prohibitions relating to treatment of Jewish slaves still have practical repercussions today.

The Rambam counts no fewer than four negative commandments that could fall into this category:

1)  Not to sell a Jew in the manner that slaves are usually sold (Vayikra 25:42).

2) Not to make a Jewish servant work rigorously (Ibid. 43). This refers to working for undefined lengths of time (i.e. if the worker does not know when he will be able to finish work for the day), or work that has no use other than keeping the servant occupied.[2]

3) Not to allow a non-Jew to do so (Ibid. 53).

4) Not to give him work usually designated for slaves (Ibid. 39). Examples given are carrying the master's fresh clothes after him when he goes to the bathhouse or removing his shoes,[3] although this commandment is definitely dependent on the local custom. Nowadays there is certainly no problem for an elderly or disabled person to employ a carer to do tasks for him that he is unable to do himself, as long as the carer is treated fairly and respectfully.

Although even today some employers may be guilty of transgressing some of the above, to my knowledge it is unusual. An issue that comes up far more often is when an employee wants to terminate his contract and cease work. While physically forcing him to stay is certainly impossible nowadays, fines for terminating a contract early sometimes do exist. Many are aware of their rights in this respect according to the law of the land; fewer know what the Torah has to say.

"A worker may back out even in the middle of the day"

This topic is subject to a dispute among the tana'im, in a case where the going rate paid to workers is now more expensive than it was at the time that terms were agreed.[4] R' Dosa says that since the employer will now have to pay more to find replacement workers, he has the right to deduct this extra cost from the wages paid to the first workers who reneged.[5]

The Tana Kama (first, unnamed view) disagrees, maintaining that the employees who reneged do not lose anything from what the employer agreed to pay them originally (per time or work done). The conclusion of the gemara is that the halacha follows the Tana Kama if the workers are paid by the hour (or other unit of time), but if they are paid for the job done irrespective of time (kablanim), the halacha follows R' Dosa and the employer can deduct his extra costs from their wages.[6]

Rashi explains the reason for this distinction. Elsewhere, the gemara explains that a worker's right to retract "even in the middle of the day" is learned from what we are told in the Torah that B'nei Yisrael are G-d's servants,[7] not servants of others.[8] The hourly worker referred to is one who must work at specific times – if he did not have the right to terminate his contract at any time this would be akin to slavery. One who is paid for a job but can choose when to work is not a slave, even if he is unable to back out.[9]

Explicit conditions and dina d'malchusa

We can seemingly conclude from here that a regular employee does indeed have the right to stop work at any time, without notice and without any financial penalty. It would appear that this is true even if it was explicitly stipulated in the contract otherwise, as the gemara is discussing a case where the original terms of employment were to complete a certain task.[10]

Similarly, even if the law of the land explicitly allows the imposing of fines on workers who terminate their contracts, this would not have any validity. In "Nezikin- the part of the Torah that we can change", I explained that the power of a community to make its own monetary laws is an extension of the same right that individuals have by mutual agreement. If mutual agreement is not enough, neither is the law of the land.[11]

At least in this country (Israel), the law usually requires a worker to give a month's notice before stopping work. If he fails to do so, he may have to compensate his employer the amount of his monthly salary (the same is true if the employee is fired without notice).[12] At first sight, this law is contrary to Torah law and its enforcement would be considered robbery.

Davar Ha'aved

However, there is an exception to the rule above. The Mishna tells us that there are special laws if one hires a donkey or wagon driver to bring instruments for use at a wedding or funeral, workers to raise flax from the water it was soaking in, or for any davar ha'aved (a job where neglect will result in a loss). In these cases, if the workers renege on their agreement, the employer has the right to hire replacements at expensive rates (if he cannot find regular workers at short notice) and to claim the extra cost from the original workers.[13]

Although this exception seems very logical, in light of what we have written above some explaining needs to be done. If under normal circumstances fining workers who quit their jobs without notice is forbidden and tantamount to slavery, how does potential monetary loss to the employer change this?

The answer is simple. When we left Egypt we did not achieve freedom so that we could act however we please. We were freed from human masters in order to devote our lives to G-d and become His servants. If our fellow Jew has a job that needs doing in order to prevent a loss, Hashem commands us in the Torah to help. One who takes on the responsibility of this job is not a slave to the employer but a servant of G-d.[14]

With this in mind, we can return to our analysis of the law requiring workers to give a month's notice before ceasing work. This would be ok if the work involved was a davar ha'aved. It is probably also safe to assume that the law itself would not apply in an extreme case, where it could be shown that the employer incurred no loss at all. So is there in fact any difference between this law and Torah law?[15]

The answer is yes, there is a major difference. To my knowledge, secular law does not differentiate between a loss and a missed opportunity to gain. If an employer stood to make a sure profit and that is prevented by a worker not keeping to his word, how is that 'loss' in profit any different to someone whose possessions are being destroyed while the person employed to protect them stands idly by?

The Torah does make this difference, teaching us that there is no such thing as a 'sure profit' that stands to be lost.[16] Thus helping someone to secure a profit is not part of the obligation of hashavas aveida. Irrevocably contracting to do this is indeed slavery of a form.

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[1] Although technically halacha still allows the sale of non-Jewish slaves, any government who tried to put this into practice would be guilty of a major abuse of power. I have already written about this in Torah versus international law, explaining that the Torah allowed slavery in accordance with the times but never meant to encourage it.

[2] Hilchos Avadim 1:6. The Ra'avad argues that a servant can be made to work for undefined lengths of time, but he also agrees that this is not the case with a regular worker (a servant refers to an eved ivri, a concept that today does not exist until we have the mitzvah of yovel).

[3] Ibid. 1:7.

[4] Bava Metzia 76b. Three main cases are discussed, the first is when a worker or employer reneges on an agreement to work before even starting; the second is when the workers travelled to work but found there was nothing to be done. Here I will concentrate only on the last case, when work has already commenced.

[5] For example, if workers contracted to earn 10,000 NIS per month for a year terminated work in the middle of the year and replacement workers will cost 11,000 NIS per month, the employer could deduct 6,000 NIS (1,000 NIS per month) from the wages of the first workers.

[6] Ibid. 77a-b.

[7] Vayikra 25:55

[8] Bava Metzia 10a.

[9] Although obviously even a kablan cannot be forced to work, and if he reneges the only consequences are financial and only if the employer incurs a tangible extra cost.

[10] Furthermore, any conditional acceptance of a fine would be subject to the rules of asmachta (discussed briefly in Hoda'as ba'al din). Although there are usually ways to solve the asmachta problem, if the fine is unreasonable it is far less straightforward (see Bava Metsia 104b). As the gemara equates such an arrangement to slavery, it would certainly seem to fall into the realm of the unreasonable. See also Shach, Choshen Mishpat 333:14 and Pischei Choshen, Hilchos S'chirus, chapter 11, footnote 1.

[11] This topic is complicated and has not been done full justice here, but I believe that the conclusion and rationale are correct.

[12] See this link (in Hebrew).

[13] Mishna Bava Metzia 75b. For further details see the Beraisos on 76b and 77a-b, commentaries thereon and Shulchan Aruch, Choshen Mishpat siman 333.

[14] A person who encounters a situation where another Jew desperately needs help to prevent monetary loss is obligated to provide this help as part of the mitzvah of hashavas aveida (returning a lost item). In the case discussed in the Mishna, the workers were not originally obligated to agree to do the work, as at the time there was no shortage of people happy for the job opportunity. However, once they did agree to do it and it is too late to find replacements, the situation reverts to a classic case of hashavas aveida. Although one who neglects to do hashavas aveida is not normally liable to pay a penalty, contracting to do so is certainly not a violation of the injunction against slavery.

[15] If the only difference was over where the onus of proof of a loss or lack of it lies, this would not present us with a problem. Obligating oneself to accept the word of a fellow litigant is a concept widely accepted in halacha, see for example Shulchan Aruch, Choshen Mishpat siman 71.

[16] R' Hirsch in his commentary on the Torah, Shemos 22:24, explains the prohibition of charging interest along similar lines - Hashem did not want a person's money to make automatic profit for him without doing any work. The truth is that ideally even possessions that we already have should not be viewed as eternal assets, as we live in a temporary world. However, this ideal is on a level beyond what most humans can be expected to rise to. A similar halachic difference exists on Chol HaMo'ed, when work is permitted to prevent a loss but not to maintain a regular profit.